No, the Supreme Court is not Our Sole Remedy

The Cato Institute has now joined the Heritage Foundation in telling Americans they’re not allowed to nullify unconstitutional laws — because, after all, that’s what we have the Supreme Court for. Plus, says Cato chairman Robert Levy, nullification hasn’t worked so well in the past, though he doesn’t give us an update on how 100 years of relying on the Supreme Court to safeguard our liberties has been going.

Levy does allow the states something, because the Supreme Court has graciously allowed them these things:

First, are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”

In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

In the 1992 case, New York v. United States, the Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.

Levy’s article is fairly conventional law school fare, a string of statements that such-and-such must be true because federal courts have said so. It is what I would expect to read from the Heritage Foundation, from John Marshall admirers, and from nationalists. There is nothing particularly libertarian about Levy’s analysis. The message is this: play by the rules. The rules have been laid down by people who despise you, but play by them.

If I am correct that the peoples of the states are the sovereigns in the American system, and I believe I have shown this to the satisfaction of a reasonable person, then the idea that there can be no state-level resistance to the federal government — even to the divinities on the Supreme Court — becomes obviously absurd. If the peoples of the states created the federal government and its subdivisions as their agent, how do they permanently lose the ability to stop their own creation from destroying them? Since when does the agent tell the principals what its powers are?

To say that the Supreme Court must decide constitutionality in the last resort is to beg all the relevant questions. To say that the Supreme Court has itself decided that it must be this arbiter is to take question-begging to quite an extreme. How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it? As Madison explained in 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

Levy then tries to claim that Jefferson and Madison couldn’t have meant what they clearly did mean, and what everyone at the time took them to mean. James Barbour noted in the Virginia General Assembly (which is where one must go for the intent of the Virginia Resolutions, in the same way that we look to the ratifying conventions for the original intent of the Constitution) that an unconstitutional law was null, void, and of no force or effect, and the General Assembly noted that where the federal government had adopted an unconstitutional and dangerous policy, the states were duty bound to prevent the enforcement of that law within their respective territories. To claim further that this meant that the states could carry out this duty only if all of them agreed is not permissible on the basis of what we read in the General Assembly debate.

As for Madison’s later claims that he had never meant to endorse nullification, etc., this is addressed in my Nullification FAQ and on pages 288-290 of my book Nullification. (Poor Madison even tried to pretend Jefferson had never endorsed nullification, until the draft resolutions of 1798 in Jefferson’s handwriting were shown to him and he was forced to withdraw his claim.)

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Objections to nullification are addressed in some detail at NullificationFAQ.com, and that is once again where I direct readers.

I might also add that a faulty understanding of constitutional history is often at the root of the objections to nullification. There are conservatives — and amazingly, even some libertarians –who portray Chief Justice John Marshall as a hero. He is a hero if you like the federal government we have now. Otherwise, not so much.

This is precisely why I wanted (and recently added) a downloadable U.S. Constitutional History course at LibertyClassroom.com: to teach people the Constitution without all the Marshall/Hamilton/Webster accretions — in other words, to teach it in a way you will not learn it in any law school, which is committed to those accretions.

(And thanks to Kevin Gutzman, one of the professors in our constitutional history course, for discussing these matters with me.)

the Fed is supposed to obey the People not rule us, It’s We rule together through the Fed, but the Fed has gone AWOL and usurpt power and commenced a que de ta. The Fed is the clear rebel here, the clear insurrectionist, and the clear, offender of every fidelity it once held.

amazing that we had these very special men make and deliver a constitution that seems undeniable in its ability to limit government, if we just keep to the articles of the Republic!! we shall stand United….and Free from government intervention……yes I do, I dream

This is where Justice Roberts went off the rails! Just because Congress has the right to tax doesn’t mean it can if the use of the Commerce Clause is over reaching the intent of the Commerce Clause. Stated differently, Congress has no right to force Americans to buy something if we don’t want to purchase!

Met Tom Woods at the first nullification gathering in Orlando, Florida on 10-10-10. States have authority over the FED govt. The patriots that brilliantly put together the Constition and the Bill of Rights with the help of Divine Providence. The question will be – will all patriots honor their Oaths to the Constitution?

we are already prepairing for resistance. and no amount of money spent on tech, will save anyone whom attacks american citizens. all their tech. will be turned into scrap metal before even they see our rifles.

My fears about Cato being co-opted are being confirmed more and more….it’s not like they were exactly libertarian/pro-state’s rights to begin with (Koch and Crane kicked Rothbard out early on) but at least they did quite a few good things (“The Cult of the Presidency” by Gene Healy is a great book.) Now it’s in danger, as many have said, of becoming just another neocon outfit. (Randian foreign policy actually makes Bill Kristol look like Gandhi, in fact.)

As the Constitution say’s,the order of Authority in the U.S.A. is, The Nineth amendment, The Tenth Amendment, and, the first three articles of the U.S. Constitution, The Nineth and Tenth Amendments are enforced by The Second Amendment.Any government that opposes that order of authority, is considered, tyrannical, and must be dissolved.

from what I under stand the 14th Amendment, although never ratified by the States…as usurped the Constitutional Authority of the States which is now in the hands of the Federal Govt. as of 1871. Making us all citizens subjects of the New Corporation of the United States of America.

Supreme Court rulings are the law of the case, NOT the law of the case. If not, review Eisner V McComber: ruled the income tax un Constitutional, as it disallowed apportionment. Also violates 4th Amendment. How about those rights, eh?

Currently the Federal court is entirely installed by the Federal Government. The judges are nominated by the Federal President, and confirmed by the Federal Senators. The power of both the Senators and President comes from the United States (Federal) government. In that the supreme court decides on the limits of Federal power, both have a conflict of interest in installing the Supreme Court.

Originally the Senators who must both pass the laws, and confirm the Supreme court judges were appointed by the state legislatures and thus accountable to the states.

“The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof, …”

There was a check on the balance of power between the United States and the individual States. This is important because when a power is state power, it goes to the people if the state chooses not to exercise it. if health coverage falls under a State power, I can live in MA if i want Romney care, or live elsewhere if I don’t. If health coverage falls under Federal power, then I have no escape from Obama care short of leaving the country. I have a legal write to move between states but not to enter another country without permission of that country.

Since the 17the Amendment Senators are directly elected and thus no longer accountable to the states for appointment or reappointment

Amendment 17: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”

The Federal Government has a clear conflict of interested in installing the court that limits it.. Would we have the food and drug companies install the leadership of the FDA.. Would we have heavy industry install the leadership of the FDA?

Every State knows it does not have to adide by any null or void or unconstitutional law of the fed govt, & States do in fact disregard such law regularly. The ONLY remedy the fed govt has had is bribing State recipiants of cutting off grants & other entitlements.

The states dont have to abide by the federal governments laws or rulings.The Federal Government has the states on a aid system though, that if the states don’t comply with their rulings and laws they wont get federal money.But when you think about it where does the federal government get their money from?